Indecent proposal

Business consequences to indecency should preempt government fines

By

ThomasKostigen

SANTA MONICA, Calif. (MarketWatch) -- Ah, if only I could begin with comedian George Carlin's list of things you cannot say over the public airwaves. But I cannot. I'd pay a huge price. People maybe would get turned off and stop reading. Fewer readers, less advertising. Less advertising, less money. No profits, out of business. So the thinking goes. That's why people get fired. That's what prevents the rational sort of us from riffing expletives. It's called business consequence.

Such marketplace discipline isn't enough for the federal government. Instead, it's imposed fines on broadcasting "indecent" or "obscene" material over public airwaves. And those fines have been raised tenfold by the Broadcast Decency Enforcement Act, which passed through Congress this week. President Bush said he would sign the bill into law.

Like many of the laws that try to govern our ethics, the Broadcast Decency Enforcement Act is misplaced. Here's why: what's indecent to me may not be indecent to you. What may be obscene to you may not be obscene to me.

The bill doesn't define what is indecent. But the Federal Communication Commission defines indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities...Indecent programming contains patently offensive sexual or excretory material that does not rise to the level of obscenity."

To get a clear definition of obscenity, the FCC turns to the Supreme Court. It says obscene material must meet a three-pronged test: An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest; the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and the material, taken as a whole, must lack serious literary, artistic, political or scientific value.

If you want to legislate indecency or obscenity, then they should be defined first. That seems fair. In any case, those definitions don't much matter to the vast majority of viewers and, increasingly listeners; the Broadcast Decency Enforcement Act doesn't apply to cable or satellite radio. Anyone who's followed Howard Stern's radio program understands that fines increase publicity and opportunity. Stern has reaped a fortune from his move, ostensibly because of censorship, to satellite radio

Stern has adamantly argued it's his right to speak freely -- however crudely; it's what listeners want and expect. If you don't like it, change the channel, he argues. It's a free country.

The Parents Television Council, a critic of indecency over the public airwaves, hates this argument. The group says its members are "fed up with the sexually raunchy and gratuitously violent content that's broadcast over the public airwaves, particularly during hours when millions of children are in the viewing audience."

That disgust boiled over when Janet Jackson, performing at the 2004 Super Bowl, "flashed" part of her breast. The result was maelstrom of debate.

I've yet to particularly comprehend why this was so offensive to so many people. Certainly I get that people are sexually repressed enough in this country whereby a body part conjures shock. But the context of this scene wasn't sexual or of an erotic nature; it was in bad taste, and a poor choice.

People get fired for bad decisions, or they aren't invited back. They shouldn't be fined.

Call in, rant, petition advertisers to pull their money. That's serious business consequence. What's the point of a fine?

Viacom, which owned CBS that in turn broadcast the Super Bowl, was fined $550,000. Viacom has a market value of $2.29 billion.

If more people tuned in to see a flash of flesh and advertisers capitalized on that viewership by paying up for commercials, it would make good business sense for Viacom to pay the fine and reap the profit. Obviously that isn't the case. The ratio of fines to profits will always favor profit.

The federal government butting in and deciding what's appropriate programming or not is just plain dumb. Its interference sets off ill consequences. For example, after the Super Bowl incident, many television stations refused to air "Saving Private Ryan," Steven Spielberg's World War II epic, for fear it crossed the boundary of violence and they would get fined. (Ironically, in 2000, Bush's top movie pick was none other than "Saving Private Ryan.")

Audiences (that's us) should be able to make decisions based on the ability to tune out.

Last year more than 100 TV pilots were made, yet only a few are on the air. That's pretty much the ratio every year. Viewers democratically weed out the crap. And curiously enough it didn't take an act of congress to tell me the short-lived sitcom "Pepper Dennis" stunk.

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